T.C. Memo. 1996-397
UNITED STATES TAX COURT
RUBEN G. HINOJOS, JR., Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 5593-95. Filed August 26, 1996.
Ruben G. Hinojos, Jr., pro se.
Shari C. Mauney, for respondent.
MEMORANDUM OPINION
COUVILLION, Special Trial Judge: This case is before the
Court on respondent's motion to dismiss for lack of jurisdiction
under Rule 40. The basis for the motion is that the petition was
not timely filed under section 6213(a).1
1
Unless otherwise indicated, section references are to the
Internal Revenue Code in effect for the years at issue. All Rule
references are to the Tax Court Rules of Practice and Procedure.
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Respondent determined the following deficiencies in and
additions to petitioner's Federal income taxes:
Additions to Tax
Year Deficiency Sec. 6651(a)(1)
1990 $1,123 $100
1991 2,100 100
1992 2,099 100
Petitioner did not appear on the date this case was
calendared for trial, at which time respondent filed the subject
motion. In the alternative, respondent orally moved to dismiss
for failure to prosecute properly. A hearing was held on
respondent's motions.
At the time the petition was filed, petitioner's legal
residence was Visalia, California.
The notice of deficiency (statutory notice) bears a date of
December 16, 1994. The petition was mailed on April 4, 1995, and
was filed with the Court on April 12, 1995, some 117 days after
the date appearing on the notice of deficiency.
To maintain an action in this Court, there must be a valid
notice of deficiency and a timely filed petition. Secs. 6212 and
6213; Monge v. Commissioner, 93 T.C. 22, 27 (1989); Abeles v.
Commissioner, 91 T.C. 1019, 1025 (1988).
Section 6213(a) provides, in pertinent part, that a petition
must be filed with the Tax Court within 90 days from the date a
statutory notice of deficiency is mailed to a taxpayer residing
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in the United States. This Court has no jurisdiction over the
case if a petition is filed beyond the prescribed 90-day time
period. Pyo v. Commissioner, 83 T.C. 626, 632 (1984).
Respondent bears the burden of proving that the notice of
deficiency was properly mailed. August v. Commissioner, 54 T.C.
1535, 1536 (1970). The date appearing on the notice of
deficiency is not proof of the date of mailing. Southern Calif.
Loan Association v. Commissioner, 4 B.T.A. 223, 226 (1926). This
Court requires respondent to establish that the notice of
deficiency was properly delivered to the Postal Service for
mailing. Coleman v. Commissioner, 94 T.C. 82, 90 (1990). Proof
of mailing is generally established by a properly postmarked U.S.
Postal Service Form 3877 and constitutes highly probative
evidence that a notice of deficiency was, in fact, mailed on the
date postmarked to the taxpayer listed on the form. Cataldo v.
Commissioner, 60 T.C. 522, 524 (1973), affd. per curiam 499 F.2d
550 (2d Cir. 1974); August v. Commissioner, supra at 1538.
However, the absence of a postmarked Form 3877 is not fatal to
the validity of the notice of deficiency when respondent submits
other documentary evidence or testimony to prove that the notice
of deficiency was timely mailed. See Shuford v. Commissioner,
T.C. Memo. 1990-422, affd. without published opinion 937 F.2d 609
(6th Cir. 1991); cf. Magazine v. Commissioner, 89 T.C. 321, 326
(1987).
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In this case, the statutory notice was sent to petitioner by
mail addressed to P.O. Box 2531, Sunland Park, New Mexico, 88063,
which was the address shown on petitioner's 1990, 1991, and 1992
Federal income tax returns. The statutory notice was issued by
the Internal Revenue Service Center at Albuquerque, New Mexico
(hereinafter the Albuquerque Center or center). At the hearing
on respondent's motion, respondent, to establish proof of
mailing, introduced into evidence U.S. Postal Service Form 3877
(Form 3877). The Form 3877, however, while listing petitioner as
one of the taxpayers to whom a statutory notice was mailed, does
not contain a postmark by the U.S. Postal Service (USPS).
However, respondent submitted additional evidence to establish
the fact and date of mailing, consisting of an affidavit of
Lorraine Sanchez, an Internal Revenue Service tax examiner at the
Albuquerque Center, as to the procedures followed at that center
in mailing statutory notices.
When a statutory notice is prepared and is to be sent to a
taxpayer, the statutory notice is given a certified mailing
number and recorded on a mailing list, Form 3877, which contains
a listing of all taxpayers to whom statutory notices will be
mailed on a particular day. A tax examiner then "double checks"
all of the statutory notices with the names on the mailing lists
to verify that all statutory notices to be mailed out are listed.
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The statutory notices are thereafter generally brought to the
mailroom at the center for delivery to the post office.
On days when the tax examiner is unable to deliver the
statutory notices directly to the post office, the tax examiner
will wait for the USPS daily mail carrier (USPS carrier) to
arrive. At that time, the USPS carrier is then given the
statutory notices as well as the Form 3877. The USPS carrier
"double checks" all of the statutory notices with the names on
the Form 3877 to verify that the names on the statutory notices
match those on the Form 3877. Thereafter, the USPS carrier signs
and dates the Form 3877. The Form 3877 is not stamped with a
postmark by the USPS carrier because the USPS will not allow mail
carriers to carry postmark rubber stamps. This routine occurs in
the normal course of business, on average, twice a week.
The Form 3877 introduced into evidence in this case
indicates that a statutory notice was sent by the Albuquerque
Center to petitioner at the Sunland Park, New Mexico, address for
tax years 1990, 1991, and 1992. The Form 3877 also indicates
that statutory notices were sent to 12 other taxpayers. The Form
3877 indicates that the receiving employee of the USPS
postmaster, in this case the USPS carrier, received 13 pieces of
mail that day that were to be sent by certified mail, return
receipt. The Form 3877 is signed by the USPS carrier and hand
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dated December 16, 1994. As noted earlier, the Form 3877 does
not contain a USPS postmark.
Based on the record in this case, the Court is satisfied
that respondent established that the statutory notice sent to
petitioner was mailed on December 16, 1994. The date of the
statutory notice, December 16, 1994, corresponds with the date
shown on the Form 3877. Although the Form 3877 was not stamped
with a USPS postmark, the Form 3877 was completed in the manner
consistent with Ms. Sanchez's attestations of the routine
practice at the Albuquerque Center. We have no reason to doubt
the contemporaneous record; i.e., the Form 3877 signed and dated
by a USPS employee. The Form 3877 indicates that the appropriate
number of statutory notices were sent by certified mail, return
receipt, including one to petitioner at the Sunland Park, New
Mexico, address. The lack of a stamped USPS postmark on the Form
3877 is not fatal in this case because the evidence submitted by
respondent was sufficient to prove that the statutory notice was
mailed on December 16, 1994. Magazine v. Commissioner, supra;
Shuford v. Commissioner, supra.
The petition in this case was filed with the Court on
April 4, 1995, 117 days after the date the notice of deficiency
was mailed. Since the petition was not filed within 90 days from
the date the notice of deficiency was mailed to petitioner, the
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Court has no jurisdiction over this case. Pyo v. Commissioner,
supra. Accordingly,
An order granting
respondent's motion to dismiss
for lack of jurisdiction will
be entered.